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Trump administration seeks to pull back more Atlantic Coast Pipeline permits facing challenge

Highlights

Army Corps seeks remand of water crossing verifications

Similar move requested for NPS permit

Washington — The Trump administration is seeking to pull back another permit for the Atlantic Coast Pipeline that is facing a legal challenge -- a US Army Corps of Engineers authorization governing water crossings in parts of West Virginia.

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The Corps' motion Friday in the 4th US Circuit Court of Appeals followed a similar request by the administration January 16 for voluntary remand of a National Park Service permit for ACP that was also being challenged by environmental groups in the same court.

Both actions highlight the difficulties in the 4th Circuit for federal agency permits for the 600-mile, 1.5 Bcf/d project, one of several meant to move Appalachian gas to Mid-Atlantic markets.

Still, one analyst suggested the requests for remand could help speed the regulatory process along, keeping control of the timeline with the agencies, rather than the court.

"While both requests came from the government, they are both positive developments for the project because it likely means the time period to a sustainable affirmative decision will be shortened," said LawIQ Director of Research Gary Kruse.

MVP DECISION

In the case of the water crossing permit, the Corps justified its request by pointing to the same court's decision in November striking a similar permit for the neighboring Mountain Valley Pipeline.

In that case, the court found that West Virginia's waiver of the requirement for a more site-specific individual state water quality certification was invalid and that therefore the verifications of water crossings by the Corps' Huntington District were arbitrary and capricious.

The Corps, in its recent motion, asserted that an order granting remand in the ACP case is appropriate because the court already has found that a state waiver "under similar circumstances," in the MVP case, was invalid or procedurally deficient." It asked the court to vacate the verifications and remand the matter to the Corps (Sierra Club v. US Army Corps of Engineers, 18-1743).

In both cases, environmental groups have argued that the pipelines should not have been allowed to use a type of permit known as Nationwide Permit 12 because the projects failed to meet certain special conditions set by state -- for instance that a crossing must be completed within a 72-hour period.

As part of an effort to get the projects back on track, the West Virginia Department of Environmental Protection has since sought to change some of the special conditions for using the nationwide permit -- including some at issue in the ACP litigation. Earlier this month, the DEP extended the public comment period on those proposed changes until March 4.

PROJECT TIMING

Karl Neddenien, a spokesman for Dominion Energy, said changes considered by West Virginia "appear to be common sense modifications" that add clarity and preserve environmental protections. "While timing and exact sequencing is somewhat fluid, we are confident in the ultimate outcome: The ACP will be completed."

Washington Analysis, in a research note, suggested ACP's revised in-service target of mid-2020 is threatened by the prolonged government shutdown that prevents added work by some of the agencies of jurisdiction and "the likelihood that an act of Congress may be necessary to replace at least one vacated permit for ACP."

Amid regulatory challenges, Dominion previously postponed the ACP in-service target from mid-2019 to mid-2020 for portions of the project, while a late-2019 target remained for some segments.

-- Maya Weber, maya.weber@spglobal.com

-- Edited by Keiron Greenhalgh, newsdesk@spglobal.com

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